ALIBI. See Criminal Law. 1. The burden of proving an alibi is upon the defendant, after the territory has made out a prima facie case, to the extent, at least, of raising a reasonable doubt of guilt.-Wilburn v. Ter., X-402-6; 62 Pac. 968. 2. Defendants sought to establish an alibi; an instruction by the court to the jury that it was incumbent on the defendants to establish by a preponderance of the evidence that they were not at the place where the murder was committed or were at some other place at the time away from the scene of the murder, but not beyond a reasonable doubt, and imposing on prosecution the obligation to demonstrate beyond a reasonable doubt that defendants were at the place where deceased was killed, and giving defendants the benefit of their testimony to create a reasonable doubt as to their being at the place of murder was not error; question as to whether an alibi is an affirmative defense not passed on.-Borrego v. Ter., VIII-446-74; 46 Pac. 349. ALTERATION OF INSTRUMENTS. 1. The maker of a promissory note may make a material change therein after delivery to bring it into conformity with his contract with the payee, and may consent to such change being made by the payee or his agent and thereafter be as fully bound by the obligation as before such change or alteration was made; the maker of such note subsequent to such material alteration therein, may ratify the alteration by words or acts.-Stringfellow v. Petty, XIV-14; 89 Pac. 258. 2. Alteration of a promissory note after execution and delivery, although made without purpose to defraud, but in good faith, will release an indorser where made without his consent.-Ruby v. Talbott, V-251; 21 Pac. 72; 37 L. R. A. 724n. [Long, C. J., dissents in a measure, holding that suit could have been brought on the note at law, whereas this was an equity proceeding to reform the note to its original wording.] ANIMALS. See Brands, Damage Feasant, Agistment, Liens. 1. Evidence as to brand of stolen animal competent to identify.-Ter. v. Valles, 103 Pac. 984. 2. In an indictment for killing calf, alleging the ownership of calf, ownership must be proved as laid, beyond a reasonable doubt.-Ter v Sais, 103 Pac. 980. 3. The statute providing that unrecorded stock brands shall not be recognized "as any evidence of ownership," does not prevent the recog nition of a duly recorded brand as evidence bearing on the question of ownership prior to the record of the brand.-Ter. v. Meredith, XIV288; 91 Pac. 731. 4. When a brand is recorded with the Cattle Sanitary Board all horses, mules, asses or neat cattle branded with that brand are prima facie the property of the person owning such recorded brand.-Ter. v. Caldwell, XIV-535; 98 Pac. 167. 5. The strict common law doctrine that every man is compelled to keep his stock within an inclosure or upon his own lands was never applicable to this territory, where, by long established custom animals have been permitted to range at will upon the unenclosed lands of others without liability for trespass.-Railway Company v. Cazier, XIII-131-134; 79 Pac. 714. 6. In order to prove ownership of cattle by the brand a certificate of the record of the brand must be introduced.-Ter. v. Smith, XII-229235; 78 Pac. 42. 7. In order to prove ownership of cattle by brands, it is necessary to show that the brand was recorded.-Pryor v. Portsmouth Cattle Co., VI-44-52; 27 Pac. 327. APPEAL. See Appeal and Errors, New Trial. 1136. 1. Where there is a conflict of 85 Pac. 1038; 9 L. R. A. (N. S.) evidence as to the facts, the jury's verdict will not be disturbed on appeal. Stringfellow v. Petty, XIV14; 89 Pac, 258. 2. Matters of law determined upon a former appeal become the settled law of the case, are binding upon the court and the litigants and cannot be reviewed on second appeal.-Dye v. Crary, XIII-439-456; 85 Pac. 1038; 9 L. R. A. (N. S.) 1136. 3. A previous ruling by the appellate court upon a point distinctly made may be only authority in other cases, to be followed and affirmed, or to be modified or over-ruled, according to its intrinsic merits, but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.-Dye v. Crary, XIII-439-457; 4. The former decisions of the appellate court, when the same case comes up on second appeal, is the law of the particular case, and will not be again reviewed.-Flournoy v. Bullock, XI-87-100; 66 Pac. 547; 55 L. R. A. 745. 5. Every matter determined on a former appeal is the law of the case, and is binding on the appellate court on another appeal.Armijo v. Mtn. Electric Co., XI-235242; 67 Pac, 726. 6. Every question which is actually and necessarily determined in a case by an appellate court is the law of the case, and, right or wrong, is conclusively binding upon the parties and the courts until overruled by some higher court of appeal; this rule applying not only to questions specifically decided, but also to those questions which are necessarily involved in reaching the decision specifically announced.-U. S. v. D. & R. G. R. R., XI-145-154; 66 Pac. 550. 7. The findings of fact made by a judge who decides a case without a jury are entitled to as much, if not more, consideration than the findings of a master or referee, and where the decree based thereon is not manifestly wrong, the same will not be disturbed.-De Baca v. Pueblo of Santo Domingo, X-38; 60 Pac. 73. 8. If an appellee does not except to the amount of the judg ment the appellant cannot take ad vantage of it by exception and appeal, even if it be erroneous, as the ruling is in his favor.-Orange Co. Fruit Ex. v. Hubbell, X-47-58; 61 Pac. 121. 9. The former decision of the appellate court, if upon substantially the same evidence so far as it states the law, is the law of the case and will not be reviewed on a subsequent appeal.-Crary v. Field, X-257-264; 61 Pac. 118. 10. The Code of Civil Procedure is not applicable to and does not govern as to the requirements in appeals in criminal cases.-Ter. v. Archibeque, IX-403; 54 Pac. 758. APPEAL AND ERROR. I. NATURE AND FORM OF REMEDY, 1. II. NATURE AND GROUNDS OF APPELLATE JURISDICTION 2-19, DECISIONS REVIEWABLE, 20-85. III. IX. THEREFOR, 145. SUPERSEDEAS OR STAY OF PROCEEDINGS, 146-150. X. RECORD AND PROCEEDINGS NOT IN RECORD, 151-201. XI. XII. XIII. BRIEFS, 233-234. DISMISSAL, WITHDRAWAL OR ABANDONMENT, 235-250. XIV. DOCKETS, CALENDARS AND PROCEEDINGS BEFORE HEAR, ING, 251-260. XV. HEARING AND REHEARING, 261-263. XVI. REVIEW, 264-267. XVII. XVIII. DETERMINATION AND DISPOSITION OF CAUSE, 268-286. See Criminal Law, Appeal, Instructions. 1. NATURE AND FORM OF REMEDY. 1. The act of Feb. 13, 1880 (Sec. 1829, C. L. 1884), regulating writs of error, bills of exceptions and appeals from the district to the Supreme Court, was a proper exercise of the legislative power.-U. S. v. Gwyn, IV-635; 42 Pac. 167. II. NATURE AND GROUNDS OF APPELLATE JURISDICTION. 2. The remedy for the failure of the judge trying the cause without a jury to make a finding on a material issue is not by appeal, but by a motion for further findings.Eagle Mining Co. v. Hamilton, XIV271; 94 Pac, 949. 3. Verdict of the jury will not be set aside merely because of a contention as to the weight of evidence where the verdict is sustained by legally adequate evidence and by the lower court.-Kitchen v. Schuster, XIV-164; 89 Pac. 261. 4. Where defendant admits his presence at the scene of homicide, but claims it was suicide, and where it appears that every person who could throw any light on the facts testified at the trial, it was not error to refuse defendant further time to prepare for his defense.-Ter. v. Emilio, XIV-147; 89 Pac. 239. 5. Rulings of the lower court on the admission of evidence, though technically error, will not be disturbed where the testimony elicited was of a trivial character and could not have changed the result.-Insurance Co. v. Mercantile Co., XIII241-256; 82 Pac. 363. 6. The Supreme Court will not consider errors, except those which are jurisdictional, unless exceptions are taken to them in the lower court.-Brown v. Lockhart, XII-10; 71 Pac. 1086. 7. The appellate court will not consider on appeal any matters except those relating to jurisdiction, unless objection is made and exception saved.-Ter. v. Taylor, XI588-603; 71 Pac. 489. 8. In the appellate court it must be shown not only that error occurred in the trial court, but that such error was prejudicial to the appellant.-U. S. v. Griego, XI-392411; 72 Pac. 20. 9. Error assigned that it did not appear from the evidence that the crime complained of and charged against the defendant was committed within the jurisdiction of the court, is a jurisdictional question and may be raised for the first time on appeal.-Ter. v. Gonzales, XI447-456; 68 Pac. 923. taken 10. Where appeals are from interlocutory orders of the District Court the Supreme Court is without jurisdiction to hear and determine the appeal.-Aldrich v. Young, XI-444-447; 68 Pac. 1134. 11. An order dissolving an attachment before the trial of the main suit is only an interlocutory order or decree and is not a final judgment from which an appeal can be taken; Secs. 8 and 9, Chap. 75, Sess. Laws 1899, allowing appeals from such orders, are contrary to the organic act and therefore void. -Machen v. Keeler, XI-413-418; 68 Pac. 937. 12. When a lower court has no jurisdiction to enter a judgment the question of jurisdiction may be raised for the first time in an appellate court.-De Baca v. Wilcox, XI-346-353; 68 Pac. 922. 13. By Sec. 2193, C. L. 1884, a writ of error will lie from a decree in equity as well as a judgment at law. Farish v. Mining Co., V-234; 21 Pac. 82. 14. A writ of error does not lie in chancery cases (1880).—Kidder v. Bennett, II-37. [This decision caused the legislature to pass Sec. 2193, C. L. 1884, and now a writ of error lies to review a decree of a court of equity as well as a judgment at law.-Farnish v. Mining Co., V-234; 21 Pac. 82. 15. A decree dismissing a bill in equity upon the merits of the controversy, by the District Court sitting as a United States court, signed by the judge and filed with the clerk in vacation, is a final decree within the meaning of the statute (Sec. 1829, C. L. 1884), from which an appeal on writ of error lies to the Supreme Court.-U. S. v. Gwyn, IV-635; 42 Pac. 167. 16. The Supreme Court will not order a new trial on the application of plaintiff in error on the ground that by the resignation of the judge before whom the cause was tried he has lost his right to have the judgment reviewed, where the record and bill of exceptions have both been stricken from the files because not signed and sealed by the trial judge; nor will the court on motion of defendant in error in such case affirm the judgment where a transcript filed by him does not show that an appeal has been granted on writ of error issued in the cause.-Wheeler v. Fick, IV303; 13 Pac. 217. 17. Where no precipe has been filed in a cause in the office of clerk of the Supreme Court, no writ of error issued, as required by statute (Secs. 2191-99, C. L. 1884), and no steps taken by citation or otherwise to bring the cause into court, and the defect is not cured by the general appearance of defendant, the Supreme Court acquires no jurisdiction of the cause, and it will, on motion, be stricken from the docket.-Chisum v. Ayers, IV-89; 12 Pac. 697. not 18. A bill of exceptions served, signed and filed within the time prescribed by Sec. 2198, C. L. 1884 and Rule 24 of the Supreme Court, will, on motion or appeal, be stricken from the files, unless the time is extended by the court or the judge; it cannot be enlarged by stipulation of the parties, nor is it in the power of the judge to enlarge the prescribed periods, unless requested to do so while the parties are presumed to be before him, and the cause is under his control.Evans v. Baggs, IV-67; 13 Pac. 207; Jennison v. Boos, IV-71; 13 Pac. 230. 19. The Supreme Court will not encourage appeals where trivial amounts are involved.-Wagner v. Eaton, II-211. III. DECISIONS REVIEWABLE. 20. Judgment of District Court will not be set aside on appeal, merely because judgment of lower court was rendered at the de facto county seat instead of the de jure county seat.-Ter. v. Clark, 99 Pac. 697. 21. Ordinarily the verdict of a jury in a criminal case when the same is supported by any substantial evidence, will not be disturbed. --Ter. v. West, XIV-546; 99 Pac. 343. 22. The findings and verdict of |